Bar Rules

Formal Advisory Opinion No. 87-5

Ethics & Discipline / Advisory Opinions / Formal Advisory Opinions / Formal Advisory Opinion No. 87-5

State Bar of Georgia
Issued by the Supreme Court of Georgia
On September 26, 1988
Formal Advisory Opinion No. 87-5


For references to Standard of Conduct 22(b), please see Rule 1.16(d).

For an explanation regarding the addition of headnotes to the opinion, click here.

Assertion of Attorneys' Retaining Liens.

An attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute. Accordingly, an attorney may not to the prejudice of a client withhold the client's papers or properties upon withdrawal as security for unpaid fees.

QUESTION PRESENTED:

What are the ethical duties of a lawyer under Standard 22(b) with respect to the return of a client's papers and property when the lawyer has not been paid in view of the statutory retaining lien authorized by O.C.G.A. § 15-19-14(a) (Conflict between Standard 22(b) and Attorneys' Holding Lien)?

SUMMARY ANSWER:


An attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute.  Accordingly, an attorney may not to the prejudice of a client withhold the client's papers or properties upon withdrawal as security for unpaid fees.

OPINION:


Section 15-19-14(a) of the Georgia Code gives attorneys a lien for services rendered on their clients' papers and moneys in their possession. Specifically, that statute provides as follows:


Attorneys at law shall have a lien on all papers and money of their clients in their possession for services rendered to them. They may retain the papers until the claims are satisfied and may apply the money to the satisfaction of the claims.


[T]he lien attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the results of his exertions. Brotherton v. Stone,197 Ga. 74, 74-75(3) (1943) quoting Middleton v. Westmoreland, 164 Ga. 324(1-b),329 (1927).

This definition suggests that anything the attorney prepared or attains for the client can be subject to the statutory lien if the client fails to pay the attorney's fee. By way of illustration and not limitation, the following items are examples of client papers to which a lien may attach: Anything which the client gives to the attorney to use or consider in the representation; Evidence, including demonstrative evidence, photographs, statements of witnesses, affidavits, deposition and hearing transcripts, exhibits and physical evidence; Expert evidence, including tests, opinions and reports; Agreements, contracts, instruments, notes and other documents used or to be used in transactions of any kind; Corporate records, minute books and records of organizations; Wills, trusts and other estate planning documents; and Legal memoranda and analyses.

The power to exercise this statutory right is not without limitation, however, in view of Standard 22(b) of the Standards of Conduct of the Rules of the State Bar of Georgia which mandates as follows:

A lawyer shall not withdraw from employment until he has taken reasonable steps to avoid foreseeable prejudice to the rights of his client, including . . . delivering to the client all papers and property to which the client is entitled and complying with applicable laws and rules.

Due to the facial conflict between the grant of power in the lien statute and the limitation that Standard 22(b) imposes on that power, this opinion will address whether and when an attorney ethically may exercise his or her statutory lien rights upon withdrawal of representation.

As a general rule, an attorney cannot exercise statutory lien rights to the foreseeable prejudice of the client. Such ethical considerations maintain preeminence over legislative grants of power to attorneys. For example, First Bank & Trust Co. v. Zagoria, 250 Ga. 844, 302 S.E. 2d 676 (1983), held inapplicable in cases of attorney malpractice the liability shield legislatively afforded by the professional corporate statute. The Supreme Court "has the authority and in fact the duty to regulate the law practice. . . ." Id. at 845, 302 S.E. 2d at 675. Although recognizing the right of the legislature to enact technical rules governing corporations, Zagoria cautioned that the legislature "cannot constitutionally cross the gulf separating the branches of government by imposing regulations upon the practice of law." Id. at 845-46, 302 S.E. 2d at 675.

Despite the existence of the lien statute, and because "[a] lawyer's relationship to his client is a very special one," id. at 846, 302 S.E. 2d at 675, the power of attorneys to exercise their rights under the lien statute must give way to their ethical obligation not to cause their clients prejudice. The majority of jurisdictions that have considered this question are in accord.

Standard 22(b) prohibits attorneys from holding their clients' papers if such an action foreseeably will cause them prejudice. The right to claim a lien in such papers under the statute will not protect the attorney in the case of prejudice to the client. Because it would be only in the rarest of circumstances that a client could be deprived of his or her files without eventually suffering some prejudice, the better practice is for attorneys to forgo retention of client papers in all but the clearest cases. This practice would avoid the necessity of speculating whether an attorney's action might cause some future harm.

In accord with certain other jurisdictions, however, we limit the duty to turn over client files and papers to those for which the client has been or will be charged, that is, all work products created during "billable time."1 For matters that are handled under arrangements other than hourly charges, any work product intended for use in the case would be included in those documents that should be returned to the client.2 For example, because attorneys do not bill clients for the creation of time records and they would not be used in the case (absent a claim for fees), these records would probably be retained.

Despite the obligation to return original documents to their clients, attorneys are entitled to keep copies of their clients' files.3 Absent a prior agreement that the client will be responsible for copying charges, however, the attorney bears the cost of copying.4 Notably, even if such an agreement exists, in the event that the client refuses to pay, the attorney must advance the cost and then add the charge to the client's outstanding bill.5

We do not endorse the practice of some jurisdictions of allowing the attorney to require the client to post comparable security before releasing the papers.6 To allow an attorney to require security in a bona fide fee dispute would be unfair to the client because it may require him or her to encumber property without justification. However, if the client offers to post security for the attorneys' fees and expenses pending resolution of a dispute, the attorney must release the papers. Similarly, we do not unequivocably approve the practice of some jurisdictions of holding summary hearings because this is likely to result in duplicative proceedings.7

Therefore, we conclude that an attorney's ethical obligation not to cause prejudice to his or her client is paramount over rights under the lien statute. Accordingly, an attorney may not to the prejudice of a client withhold the client's papers or properties upon withdrawal as security for unpaid fees.



1 See, e.g., San Francisco Comm. Opin. No. 1984-1.

2 See also Michigan Opin. No. CI-926.

3 See id. See also New Jersey Sup. Ct. Advis. Comm. Opin. No. 554 (May 23, 1985).

4 See San Francisco Comm. Opin. No. 1984-1.

5 See id.

6 See Foor v. Huntington National Bank, No. 85AP-167, slip op. (Feb. 11, 1986); Michigan Op. No. CI-930 (May 4, 1983).

7 See Foor v. Huntington National Bank, No. 85AP-167, slip op. (Feb. 11, 1986).



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